Delta Steel, Inc. v. M/S PANAGOS D. PATERAS, Civ. A. No. 79-4244.
| Decision Date | 20 September 1982 |
| Docket Number | Civ. A. No. 79-4244. |
| Citation | 548 F. Supp. 1006 |
| Court | U.S. District Court — Eastern District of Louisiana |
| Parties | DELTA STEEL, INC. A. M. Castle Co. Cockrill Stinnes Primary Steel Corporation, Plaintiffs, v. M/S PANAGOS D. PATERAS and BARGE RW-170, in rem Diamond Freighters Corporation Leandros Shipping Co., S. A. Atlantic Lines & Navigation Co., Inc. Riverway Barge Company River Forwarders, Inc., Defendants. |
Philip A. Fant, Cynthia Anne Wegmann, New Orleans, La., for plaintiffs.
Norman C. Sullivan, Jr., Robert P. McCleskey, Jr., New Orleans, La., for defendant River Forwarders, Inc.
T. C. W. Ellis, New Orleans, La., for defendant Riverway Barge Co.
Kenneth W. Jacques, New Orleans, La., for defendant Atlantic Lines & Navigation Co.
Maurie D. Yager, New Orleans, La., for defendants Diamond Freighters Corp. and Leandros Shipping Co.
This is an admiralty and maritime claim for cargo damage. The plaintiffs filed suit to recover $70,000 in damages resulting from water damage to coils of cold rolled steel sheet carried aboard the M/V PANAGOS D. PATERAS from the Port of Brake, Belgium to the Port of New Orleans, and then transported by Barge RW-170 to Cotoosa, Oklahoma. Named defendants in the action are Diamond Freighters Corporation and Leandros Shipping Co., S. A., owner, manager and/or operator of the PANAGOS D. PATERAS; Atlantic Lines & Navigation Company, Inc., charterer of the PANAGOS D. PATERAS; Riverway Barge Company, owner of the Barge RW 170; and River Forwarders, Inc., the freight forwarder which issued its inland bill of lading for the carriage of the cargo from New Orleans to Catoosa.
During the pendency of this suit, Riverway Barge Company and River Forwarders, Inc. entered into a release and assignment with the plaintiffs whereby the plaintiffs were paid $48,000 in settlement. The plaintiffs thereby assigned and transferred to Riverway Barge Company and River Forwarders, Inc. all right, title and interest in this cargo damage claim. This release and assignment was not participated in or agreed to by the other defendants, Diamond Freighters Corporation, Leandros Shipping Co., S. A., or Atlantic Lines & Navigation Company, Inc.
Thus, Riverway Barge Company and River Forwarders, Inc. are now each contending that the other is liable and/or that liability rests with the ocean carrier that transported the cargo from Belgium to the Port of New Orleans. The parties agreed to forego trial and, instead, to submit the case to the court on briefs. For the reasons discussed below, I find that no fault, negligence, or breach of obligations on the part of the owner or charterer of the PANAGOS D. PATERAS contributed to the wetting of the cargo in Barge RW-170. I further find that Riverway Barge Company alone is the liable party because Riverway breached its duty to properly load, stow, care for and deliver the cargo.
On June 28, 1979, a consignment of 63 coils of cold rolled steel sheet was delivered to Diamond Freighters Corp., Leandros Shipping Company, S. A., Atlantic Lines & Navigation Co., Inc. and the M/V PANAGOS D. PATERAS at the Port of Brake, Belgium. This cargo was to be carried aboard the PANAGOS D. PATERAS to the Port of New Orleans.
On July 31, 1979, the PANAGOS D. PATERAS arrived at the Harmony Street Wharf in the Port of New Orleans, where the cargo was to be discharged to Barge RW-170 for carriage to the Port of Catoosa, Oklahoma.
On August 1, 1979, Barge RW-170 arrived at the side of the PANAGOS D. PATERAS, fit to receive the cargo; however, the cargo was not loaded aboard the RW-170 until August 4, 1979.
Some rain occurred at the Harmony Street wharf on August 2, but there is no evidence that rain occurred there on August 4, the date that the steel sheet cargo was discharged by the stevedore, T. Smith & Son, Inc., to Barge RW-170. At the time of the discharge of the cargo, the covers of the coils in question were noted to have some rust, this condition being consistent with the exceptions appearing on the ocean bills of lading. (When the steel coils were loaded aboard the PANAGOS D. PATERAS in Belguim, the bills of lading issued by Atlantic Lines & Navigation Company, Inc., noted the existence of some rust).
At some time prior to the discharge of the cargo from the PANAGOS D. PATERAS in New Orleans, River Forwarders was contacted to provide a barge for carriage of the cargo to the Port of Catoosa, Oklahoma. River Forwarders issued a bill of lading dated August 4, 1979 to States Shipping Agency of Houston, Texas, who was acting as agent for Atlantic Lines & Navigation Company, stating that River Forwarders would provide carriage of the coils of steel from New Orleans to Catoosa, Oklahoma. Because River Forwarders does not own any barges or tugs, they then contacted Riverway Barge Company to supply a barge and tug to receive and carry the cargo.
Riverway Barge Company supplied Barge RW-170, which it owned, to receive the cargo and issued its bill of lading to River Forwarders for carriage of the cargo to Catoosa.
After the steel coils were loaded onto the Barge RW-170 on August 4, 1979, the barge departed from the Harmony Street wharf. On August 6, 1979, at another wharf in New Orleans, additional steel products were loaded from the M/S DICTO into Barge RW-170. On August 10, 1979, the barge returned to the Harmony Street wharf for other shipments. Although T. Smith & Son stevedoring company loaded both the August 6 and August 10th cargo, this cargo was not loaded for the account of the PANAGOS D. PATERAS interests, and those interests had no further connection with the barge after the coils of steel were discharged to the barge on August 4, 1979.
There was no evidence of water in the barge's cargo compartment when the coils were discharged from the PANAGOS D. PATERAS on August 4. The barge's covers were closed after the coils were loaded, and when employees of T. Smith & Son, Inc., reopened the barge on August 6, and again on August 10, to load the additional consignments, no water in the barge was observed.
Barge RW-170 next traveled inland to Muskogee, Oklahoma, where other cargo was offloaded on August 24 and August 27 by Will Bros. Terminal Company. Only the forward 1, 2, and 3 covers on the barge were opened, and cargo in that area offloaded. On August 27 there was about half an inch of rain in Muskogee.
Barge RW-170 next traveled upriver to Catoosa, Oklahoma, arriving on September 8, 1979, where water was found standing in the barge's cargo compartment with some of the steel coils having been wetted.
If rain is encountered while T. Smith & Son, Inc., is loading a barge in the Port of New Orleans, a notation on the Daily Working Report concerning rain and detention time is made and then the detention time is charged to T. Smith's client since the longshoremen continue to get paid during this period of time. Additionally, if the client employing the stevedores requires the stevedores to work during the rain, the longshoremen are paid double time.
If the longshoremen are required to work in a barge which contains water, the union contract requires them to be paid double time and therefore a notation on the Daily Working Report relative to double time and water in the barge would be present.
The T. Smith & Son terminal superintendent testified in his deposition that if water were present in the barge while the barge was in the Port of New Orleans, this water would have been detected by the longshoremen who worked the barge and they would have sought double time with the appropriate notations being contained on the Daily Working Reports.
The Daily Working Reports of T. Smith & Son, Inc., contain notations for rain only on July 31, 1979 and on August 2, 1970. Barge RW-170 was not being loaded on either of these two days alongside the PANAGOS D. PATERAS nor was the number 7 hold of the PANAGOS D. PATERAS, where the steel coils were stowed, being worked on either of these two days. There are no notations on the Daily Working Reports indicating rain on August 4, 6, or 10, 1979.
It is the policy of T. Smith & Son, Inc. to close the hatches of barges when rain is encountered and to close, secure, and lock hatches of barges prior to their leaving the custody of T. Smith & Sons, Inc. when barges contain cargo such as the steel coils involved in this case.
If Barge RW-170 had come alongside the PANAGOS D. PATERAS on August 4, 1979 with a list or with water in the hopper, the Policy of T. Smith & Son would have required that the barge be rejected. The barge was not, of course, rejected on this date.
The superintendents in charge of Barge RW-170 on August 4, August 6, and August 10 were experienced and were aware of all of the above-mentioned policies of T. Smith & Son, Inc. The derrick foreman who had responsibility for closing the hatches of Barge RW-170 on August 10, 1979 had fifteen years of experience and was well aware of the policy of T. Smith & Son concerning the closing of hatches at the completion of loading operations. The policies of T. Smith & Son were, in fact, followed during the loading of the Barge RW-170.
On behalf of Riverway Barge Company, a marine surveyor inspected the steel coils in a warehouse at Catoosa, Oklahoma on September 11. He found that eighteen coils had marks indicating that they had rested in water ranging in depth from one-half inch to eleven inches. These marks, on the exterior of the coils, appeared to be fresh.
After examining the coils in the warehouse, the surveyor inspected the barge and found that it still contained standing water in the aft portion of its cargo compartment. The surveyor observed heavy, fresh, orange rust on the hopper floor, slope, sheet and walls under the number 1, 2, and 3 covers on Barge RW-170.
The surveyor stated that "due to the heavy orange rust in the area of the number 1, number...
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